¶1We are of opinion that the third instruction asked and given for the plaintiff below, was calculated to mislead the jury, and should not have been given in the terms asked. It is in these words: “ If the jury believe from the evidence that under a contract between the parties, the plaintiff was bound to grub the ravme, yet if the jury believe that the defendant released the plaintiff from grubbing out the ravine, then the jury ought not to make any deduction in consequence of said ravine not being grubbed.” Assuming that, by the contract, Stummel was bound to grub the ravine, and that there is evidence from .which the jury might infer that by a subsequent arrangement between the parties, the ravine need not be grubbed, the implication is, that the parties intended that there should be a reasonable deduction from the contract price for the amount of labor which Stummel was released from performing, unless the jury should further find, that it was also the intention of the parties that there should be no deduction made by reason of the work omitted. The jury would naturally understand, from this instruction, that if Holmes agreed that Stummel need not grub the ravine, the presumption of law is that he intended that no deduction should be made on that account. We think the presumption of law is the other way, and that if he released him from performing a part of the contract, it was upon the implied consideration, that a reasonable'amount should be deducted from the contract price, unless the jury should find from the evidence a different intention.
¶2The judgment must be reversed and the cause remanded.
¶3Judgment reversed.